Pretend you have to choose a book: one is a lurid airport paperback written for people who don’t like to read, the story of a bad girl getting taken down a peg; the other is missing half its pages and it has a lot of footnotes. You’d choose the first book, whatever its faults—you can’t even tell what the second one’s about.
This was essentially the choice presented to the jury of Cecily McMillan’s trial by the rulings of Judge Ronald Zweibel. In a fair trial, the jury must consider two full texts and answer a reading comprehension question: In this case, is there any reasonable doubt that McMillan intentionally assaulted a police officer for the purpose of preventing him from performing his duties? But when the jury convicted McMillan on May 5, they had really been given only one side of the story.
McMillan was arrested on the night of March 17, 2012, which fell on both St. Patrick’s Day and the six-month anniversary of the Occupy movement—a date that would also become known for the seventy-three arrests that occurred in Zuccotti Park that night. While the police were clearing the park of the throng of protesters, McMillan’s elbow struck Officer Grantley Bovell’s face. The defense argues that this event occurred when McMillan, exiting the park as directed, was suddenly grabbed from behind by her right breast. Her elbow then struck Bovell when she startled, without intent to strike him or knowledge that he was a police officer. The prosecution claims that McMillan hit Bovell with her elbow without provocation while he was escorting her from the park. The fact that the blow was struck was never disputed; the question was whether the blow was provably an intentional assault of an officer.
Throughout the case, the prosecutor set out to distract the jury from the question at hand by discussing undocumented events, treating witnesses’ opinions as fact and casting aspersions on McMillan’s character. Judge Zweibel gave them free rein to do so, while consistently ruling key testimony and evidence for the defense inadmissible. This pattern was most clearly demonstrated in the court’s treatment of evidentiary video footage. Several videos posted to YouTube show the crowd at Zuccotti Park from different angles on the night in question. However, the jury saw only a sliver of blurry footage. According to the defense, out of a ten-minute video of the events before and after McMillan’s elbow struck Bovell’s face, only fifty-two seconds was admitted. Zweibel’s justification? At the beginning of this fifty-two-second section is the first frame in which Bovell says he can definitively identify himself.
It’s particularly convenient for Bovell that none of the contextual footage was shown. Another piece of his testimony was directly contradicted by the melee shown at the beginning of the video, in which another officer shoves a protester and announces through a bullhorn, “Leave the park or you will be arrested.” Bovell testified that there was an announcement that the park was being temporarily cleared for routine cleaning, at which point the belligerent protesters suddenly began to cause trouble for the polite police force. The violence with which the police are shown to interact with unresistant protesters in the full video is key to understanding the events of that night. But the judge ruled this footage inadmissible because Bovell’s memory, which proved extremely selective under cross-examination, conveniently didn’t coincide with it. One of the jurors anonymously told The Guardian that it was this fifty-two-second clip, taken out of context, that led the jury to its guilty verdict.